Judge: SJ Hilder
Citation:  EWCOP 8
This case concerned the care and residence of a 56 year old woman with significant physical health problems as well as schizophrenia and a learning disability. She had lived for many years in a first floor flat, shared with her son JJF who is described in the judgment as having his own difficulties, having attended a special needs school, and having been in prison including for assaulting his mother. Health professionals had been unwilling to enter the flat due to hostility and threats of violence from SJF’s son and she had ultimately been moved to a care home on an urgent basis. Notwithstanding these problems, SJF wanted to return to her flat to live with her son.
There were practical difficulties in providing care for SF in her flat – she needed 3 insulin injections a day, kidney dialysis 3 times a week, and by the end of the proceedings, her mobility had deteriorated to such an extent that she could only manage a few steps.
Nevertheless, the court was presented with a range of options for SF’s care and residence which included a return to her flat, a supported living placement, a care home, and a new ground floor flat. The proceedings had been going on for some two years by the time of the final hearing. SJF contended that she had capacity to make the relevant decisions. and professionals including her IMCA and two psychiatrists involved in DOLS assessments had agreed with her. The Official Solicitor as her litigation friend disagreed, relying on the evidence of the joint expert instructed for the proceedings, and supported declarations being made that SF lacked capacity to decide where to live, what care to receive and whether to have contact with her son, by reason of her mild learning disability. The central issue was whether SF was unable to understand or weigh information about the risk to her health of living with her son, with the negative impact that was likely to have on the ability of health professionals to attend the property to provide care. Was SF unable to understand those risks, or was she simply affording them less weight than the professionals because of her devotion to her son and her concerns as his mother about what would happen to him if he did not live with her? The court accepted the expert’s view that
she believes as a mum that her son’s behaviour is going to improve. That’s not necessarily because of her learning disability – many people in difficult relationships have a positive outlook of their relative’s behaviour. Bur she does not understand the impact of him not being able to provide good enough care…[or] the impact it has on her access to professionals and support mechanisms.
…. SJF’s learning disability has “several different effects – it prevents her from understanding the consequences of living with JJF, [it means] she is not able to appreciate the risks of not having appropriate care, [and] it prevents her from generating other possibilities for her son, other than living with her.” When questioned by Ms. Hearnden, Dr Rippon said “[SJF] is in a difficult position. I’ve reflected a lot about whether her wish to return [to her flat] is a lack of capacity or the concerns of a mum. On the balance of probabilities, I believe that learning disability impacts on her decision-making…. I don’t believe that she understands the impact in the care she’ll receive if she lives with her son – and that’s secondary to the learning disability… I don’t think she adequately understands the impact on her physical health.
Senior Judge Hilder found it was in SJF’s best interests, on discharge from hospital, not to return to her flat, despite her strongly held wish to do so:
The magnetic factor in this matter is SJF’s need for healthcare by professionals. She is once again taking Novorapid injections, administered twice a day by care home staff; and Lantos injections, administered each morning by district nurses. Additionally her ulcers require frequent dressing and she attend dialysis three times a week. There is no realistic prospect that these healthcare needs could be met adequately or at all if she lives in first floor accommodation or with her son. The effect of failure to meet these needs will clearly be, at best, further and rapid deterioration in her health, and increased hospitalisation.
This case illustrates the difficulty in making decisions about capacity and best interests where certain familiar factors are present:
Though the decision ultimately reached was perhaps inevitable given SJF’s deterioration in her physical condition, one cannot help wondering whether a trial period of care at home might have been possible at an earlier date, and whether imposing stricter timetables on COP proceedings might encourage increased use of trial periods even in apparently risky scenarios.